Christie & Galipo - [2021] FedCFamC1A 88

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Christie & Galipo [2021] FedCFamC1A 88

Appeal from: Galipo and Galipo and Christie [2021] FCWA 140

Appeal number(s): WEA 19 of 2021

File number(s): PTW 320 of 2020

Judgment of: MCCLELLAND DCJ, WATTS & CHRISTIE JJ

Date of judgment: 17 December 2021

Catchwords: FAMILY LAW – APPEAL – CHILDREN – Where the children’s parents are deceased – Where the maternal uncle appeals from a discretionary judgment – Capacity of the paternal grandparents to care for the children – Where the children have formed a primary attachment with the paternal grandparents – Where the result of the orders is international relocation – Adequacy of reasons – Weight challenges – No error is established – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Where there is an application for costs against the ICL – The ICL is to be treated as being unfunded and an impecunious party – Where the ICL’s conduct of the case is to be viewed in the context of the ICL’s role and statutory duties – Jurisdiction to exercise costs against the ICL should be exercised cautiously so as not to impede the ICL in the conduct of his or her duties – Where the ICL’s application for costs against the costs application is dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 60CC, 68LA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Cases cited:
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Celan & Celan [2021] FamCA 228

Cripps & Cripps [2002] FamCA 1502

De Roma v De Roma (2013) 49 Fam LR 226; [2013] FamCA 566

Dean & Susskind [2012] FamCA 897

Gahen & Gahen (No. 2) [2013] FamCA 936

Galipo & Anor and Christie [2021] FCWA 148

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Knibbs & Knibbs [2009] FamCA 840

Knight and Anor v F.P. Special Assets Ltd and Ors (1992) 174 CLR 178; [1992] HCA 28

Lenova & Lenova (Costs) [2011] FamCAFC 141

Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155; [2000] FCA 674)

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Paco & Racina and Anor [2014] FamCAFC 195

Pagliarella and Pagliarella (No. 3) (1994) FLC 92-460; [1994] FamCA 16

Re P (a child) (1993) FLC 92-376; [1993] FamCA 40

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Sawyer & Sawyer [2015] FamCA 982

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

U v U (2002) 211 CLR 238; [2002] HCA 36

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Zeng & Lam [2017] FamCA 66

Number of paragraphs: 230

Date of last submissions: 19 November 2021

Date of hearing: 5 November 2021

Place: Perth (via video-link), delivered in Sydney

Counsel for the Appellant: Mr Berry SC with Ms Farmer

Solicitor for the Appellant: Law Firm B

Counsel for the Respondents: Mr Hedges SC with Ms Anderson

Solicitor for the Respondents: Law Firm A

Counsel for the Independent Children's Lawyer: Ms De Maio

Solicitor for the Independent Children's Lawyer: Legal Aid

Table of Corrections

11 January 2022 In paragraph 220 “wholly successful” has been corrected to “wholly unsuccessful”.
ORDERS

WEA 19 of 2021
PTW 320 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR CHRISTIE

Appellant

AND:
MR AND MRS GALIPO

Respondents

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ, WATTS & CHRISTIE JJ

DATE OF ORDER:

17 DECEMBER 2021

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The paternal grandparents’ application for costs of the appeal is dismissed.
3.The Independent Children’s Lawyer’s application for costs in respect of the costs application on the appeal is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Christie & Galipo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Division 1) Rules 2021 (Cth) on 11 January 2022
MCCLELLAND DCJ, WATTS & CHRISTIE JJ:
INTRODUCTION

In early 2020, the three children, then aged six years, four years and two months were in a motor vehicle with their parents and paternal grandparents (“the paternal grandparents”). There was an accident. The parents died.
This case involves a contest about the future parenting arrangements for the children. The paternal grandparents proposed they would return to Country A and the children would live with them there. The maternal uncle (“the uncle”) proposed that the children would remain in Australia with him, his wife (“the aunt”) and their child (“the cousin”), who is around the same age as the eldest child.
On 5 August 2021, the primary judge found that it was in the children’s best interests to live with the paternal grandparents, for the paternal grandparents to have parental responsibility and permission for them to return to Country A with the children. Her Honour made a suite of consequential orders.
By an Amended Notice of Appeal filed 20 September 2021, the uncle appeals against those orders. The paternal grandparents oppose the appeal. Consistently with her position at trial, the Independent Children’s Lawyer (“ICL”) submits the appeal should be allowed.
BACKGROUND
The children’s deceased parents travelled from Country A to Australia on student visas in 2010. They left Australia in July 2012. The eldest child was born in Country A in April 2013. The family returned to Australia in October 2013 and became permanent residents in January 2014. The middle child was born in Australia in December 2016 and the youngest in October 2019. The children have dual citizenship.
The paternal grandmother, aged 68, had come to Australia in October 2019 and the paternal grandfather, aged 71, in December 2019, to provide assistance and spend time with the family at the time of the birth of the youngest child. They were living in the home of the deceased parents at the time of the motor-vehicle accident.
As a result of the motor-vehicle accident the paternal grandparents and the children were admitted to hospital but all were discharged by mid-January 2020, except the youngest child who required surgery in February 2020.
On 14 January 2020, the Family Court of Western Australia made interim orders in favour of the paternal grandparents for parental responsibility and the children to live with them. The paternal grandfather took extended leave from his job.
On 17 January 2020, the uncle, aged 35, the maternal grandmother and the children’s half-brother aged 17 years (a son of the deceased mother) arrived in Australia. On 1 March 2020 the aunt, aged 28, and the cousin, then aged seven years, arrived in Australia. They commenced to reside in the family home together with the children, the paternal grandparents and the uncle.
On 17 February 2020 the uncle filed a Response to Application for Final Orders.
On 3 March 2020, the maternal grandmother and the children’s half-brother returned to Country A.
On 14 September 2020, the aunt started employment in Town A (two and a half hours from Perth) and commenced living there between each Sunday and Thursday. The uncle remained with the children and the cousin in the family home. On 3 November 2020 the aunt suffered a head injury at work, was hospitalised twice and had several weeks off work. The uncle, aunt and cousin ceased to reside in the family home in December 2020 with the aunt and the cousin moving to Town A in January 2021.
The uncle remained in Perth and, after his visa permitted to do so, commenced work there in May 2021 at company C.
The hearing before the primary judge was in two tranches (eight days in January 2021 and four days in June 2021). Most of the lay witnesses gave evidence with the assistance of an interpreter.
The children’s time with the uncle was extended by agreement in March 2021.
The single expert, Ms F (“the single expert”) provided reports on 11 December 2020 and 12 April 2021.
THE PRIMARY JUDGE’S REASONS
The primary judge set out the orders sought by the parties and the ICL (at [9]–[15]) and discussed the proposal of the parties (at [320]–[350]). The primary judge noted at [9] that the ICL part way through the uncle’s case and before evidence was given by the single expert, filed a detailed Minute of Order which primarily proposed that the uncle have sole parental responsibility for the children and that they live with him. The ICL did not alter the orders she sought after the evidence of the expert witnesses. At the commencement of final submissions, the uncle abandoned his form of orders and adopted those of the ICL.
There was no exploration of the possibility that the uncle and aunt might return to live in Country A. The uncle’s evidence was that he would not go back to Country A to live on a permanent basis.
Her Honour detailed relevant family background and the history of the proceedings.
The primary judge dealt in turn with the evidence of the paternal grandparents, their witnesses; including the uncle’s father (“the maternal grandfather”), the wife of the maternal grandfather and importantly, Ms M, the daughter of the paternal grandparents.
Next, the primary judge considered the evidence of the uncle, the aunt and their witnesses; including the maternal grandmother and a migration agent.
Her Honour discussed the evidence of Dr A, the children’s treating clinical psychologist (at [287]–[308]) and the single expert (at [309]–[350]).
The primary judge set out relevant legal principles (at [351]–[360]) and proceeded to consider the nature of the children’s relationships (at [361]–[378]), the likely effect of any changes in the children’s circumstances (at [379]–[392]), the practical difficulties and expense of the respective proposals (at [393]–[398]), the capacity of the parties to provide for the needs of the children (at [399]–[434]), their willingness to promote the relationship between the children and the other family (at [435]–[445]), the children's places of birth and citizenship (at [446]) and other relevant factors and circumstances (at [447]–[457]). Whilst the primary judge acknowledged the impact of the COVID-19 pandemic, no expert evidence was provided as to its effect in Country A at the time of the hearing (at [452]–[456]).
Her Honour then set out her conclusions (at [458]–[473]), relying heavily at [467] on the significant short-term and potential long-term impact on the children of separating them from their paternal grandparents and emphasising the benefit of the continuity of their attachment to them (at [470]–[472]).
THE LAW RELATING TO APPEALS FROM A DISCRETIONARY JUDGMENT
The appeal challenges the exercise of the primary judge’s discretion. It is helpful to set out the established principles on appeals from discretionary judgments.
In CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) (McHugh, Gummow and Callinan JJ ) said at [152]:
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G, Lord Fraser of Tullybelton pointed out:
“The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.”
(Footnotes omitted)
In Bondelmonte v Bondelmonte (2017) 259 CLR 662 (“Bondelmonte”) the High Court said at [32]:
A parenting order made under s 65D [of the Family Law Act 1975 (Cth)] involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations…They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
(Footnotes omitted)
In House v The King (1936) 55 CLR 499 (“House”), the plurality said at 504–505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in the exercise of the discretion. If the judge acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
In Gronow v Gronow (1979) 144 CLR 513 (“Gronow”), Stephen J emphasised at 520:
…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
A number of the uncle’s grounds of appeal complain that the primary judge failed to “adequately consider” and “provide adequate reasons” about particular parts of the evidence. Whilst it is clear that the primary judge had an obligation to give proper, genuine and realistic consideration to matters in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) (Bondelmonte at [43]; Lovett & McGregor (2019) FLC 93-935 at [72]), the expression should not be used in a formulaic way to craft an appeal ground which is essentially only a complaint about the weight a primary judge has given or has not given a particular piece of evidence.
In that context, it is appropriate to observe that the primary judge considered documents which occupy approximately 1,340 pages. In addition, the primary judge heard evidence over 12 days which has been incorporated into 1,129 pages of transcript.
A judge’s reasons are not required to mention every fact or argument relied upon by the losing party as relevant to an issue (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
Reasons will be inadequate if an appeal court is unable to ascertain the reasoning upon which a decision is based or justice is not seen to be done (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, quoting Sun Alliance Insurance Ltd v Massoud [1989] VR 8). The reasons should enable the parties to identify the basis of the judge’s decision and the extent to which their arguments have been understood and accepted or rejected (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279). Reasons need not be “lengthy or elaborate in order to be adequate” (Thorne v Kennedy (2017) 263 CLR 85 at [61]).
GROUNDS OF APPEAL
Did the primary judge fail to give adequate reasons for the form of Orders 5 and 7-15? (Ground 1)
Order 5 provides that the paternal grandparents have joint parental responsibility for the children. Orders 7–14 are orders about the children spending time with and communicating with the uncle. Order 15 provides the paternal grandparents liberty to file a copy of the final orders in a competent court in Country A.
The reasons more than adequately explain why Order 5 granting parental responsibility to the paternal grandparents to the exclusion of the uncle, subject to keeping him informed of the long-term decisions made in respect of the children (Order 6), was made. In so much as this ground referred to Order 5 that complaint was appropriately, if belatedly, abandoned by both the appellant and the ICL.
The uncle and ICL argue that inadequate reasons were given in relation to why Orders 7–14 were made in the terms that they were. It is to be observed that the ICL and the uncle did not specify any orders for ancillary matters in the event that orders were made that the children live with the paternal grandparents. Before us, senior counsel for the uncle conceded that the uncle had made no submission to the primary judge in respect of the form of the then proposed Orders 7–14. Had that happened, the primary judge would have had an opportunity to deal with any asserted concern. On appeal, the uncle is bound by the conduct of his case (Metwally v University of Wollongong (1985) 60 ALR 68 at 71). It is no answer, as was submitted to us, that the primary judge was not confined by the lack of an application in the form proposed by the uncle and the ICL and the Court could have made such orders on its own motion. The restrictions on the Court’s ability to do so are well-known (U v U (2002) 211 CLR 238).
In any event, the first specific complaint is about the form of the orders relating to communication between the children and the uncle.
The orders made by the primary judge on 5 August 2021 were:
7.The children communicate with [the uncle] as agreed between the parties.
…
12. The children communicate with [the uncle] at all reasonable times by electronic means, including special occasions such as the children's birthdays and Christmas.
…
14.The children spend time and communicate with [the uncle] other than as set out in these orders provided such variations are agreed in writing.
The ICL asserts that the orders she sought were more specific.
The orders sought by the ICL and the uncle about communication if the children lived with the uncle were in the following terms:
13.The children communicate with [the paternal grandparents] at all reasonable times by electronic means, including special occasions such as the children’s birthdays and Christmas.
14.During the time the children spend with [the paternal grandparents] the children communicate with [the uncle] on one occasion per week.
15.The children have reasonable communication with their paternal aunt and uncle and their families, with either the children or the paternal aunt and/or uncle to initiate that communication.
16.[The uncle] will facilitate the children’s communication with [the paternal grandparents] and [the] paternal family by providing whatever assistance they need, given the age of the children, particularly [the youngest child].
(ICL’s Minute of Proposed Final Orders filed 15 June 2021)
As indicated the uncle and the ICL did not formulate any proposal for communication with the uncle in circumstances where an order was made that the children live with the paternal grandparents. It is difficult to see how the ICL can make the submission that the communication orders sought by her were significantly more defined and less liberal and dependent on agreement and cooperation between the parties, than the order made by the primary judge.

The next specific complaint is that the orders made by the primary judge for face-to-face time contained the following restrictions:
9.The time the children spend with [the uncle] during the four week period be as follows:
(a) in Australia:
(i)to commence at 9.00 am until 5.00 pm on the second day after the arrival of the children in Australia for the first [three] days…
(b) in [Country A]:
(i)to commence at 9.00 am until 5.00 pm the day after [the uncle’s] arrival in [Country A] for the first [three] days.
The first thing to note is that the ICL and the uncle proposed the same restrictions on the children’s time with the paternal grandparents in circumstances where the children were placed with their uncle.
Nonetheless, the ICL submitted that the evidence did not support the making of an order creating this three day restriction in circumstances where the paternal grandparents did not consider that re-acquaintance was warranted. The paternal grandmother did agree that the children would remember their uncle and that she did not think that there would be any need to reacquaint them when they arrived in Australia (Transcript 18 January 2021, p.322 lines 32–40).
On the other hand counsel for the ICL cross-examined the paternal grandfather in relation to the three day reintroduction period, during which time the primary judge commented the youngest child was 15 months old and “in two years’ time he [will not] … know [the] people [he is] going to” (Transcript 15 January 2021, p.224 lines 22–26).
It was open for the primary judge to make an order that allowed for a short period of re-introduction.
It is also to be observed that when the primary judge published reasons, her Honour expressly provided an opportunity for counsel to be heard in relation to the form of the orders. On 5 August 2021 each of the parties’ and the ICL’s respective counsel appeared before the primary judge for that purpose and the form of Order 9 was not raised.
There is no merit in Ground 1.
Did the primary judge fail to consider the totality of the evidence concerning the age and state of health of the paternal grandparents? (Ground 2)
The primary judge recited the ages of the paternal grandparents at [16] and [17] and discussed the health of the paternal grandparents at [399]–[416].
In that discussion, the primary judge referred to the evidence given by treating and consulting medical experts and practitioners and, in particular from Dr B, the paternal grandparents’ general practitioner; Dr C (“Dr C”), psychologist; Mr R, the paternal grandparents’ consultant orthopaedic surgeon and Ms S, treating psychologist. The primary judge discussed Dr B’s report at [410], Dr C’s report at [411] and [412]; Mr R’s report at [413] and Ms S’ report at [414]. The primary judge also referred to the opinions of the single expert, who made observations about the health of the paternal grandparents including reference to a report from Dr G, the paternal grandfather’s cardiologist. There is no direct challenge to any of the factual findings in this discussion.
At [145] the primary judge found:
The [paternal] grandmother denied she had depression as reported by Dr [B], although his report refers to her scores being consistent with a major depressive disorder of moderate severity. The [paternal] grandmother said that was because she was very sad having lost her son and daughter-in-law. She was not socially withdrawn after the accident. She said she did not have time to do anything, or to be by herself, she had to look after the children. Notwithstanding what was said about her recovery in the District Court proceedings the grandmother was confident she will recover completely. She said she has the [paternal] grandfather to help her and although she has some pain, at this time she does not need help.
At [415] and [417] the primary judge concluded:
415.The [paternal] grandmother was in good health prior to the accident. She is slowly recovering from injuries sustained in the accident and these have restricted her activities to an extent.
…
417.Both [paternal] grandparents have difficulties with their health which are adequately managed. These difficulties would not preclude them from caring for the children.
Ground 2(a) complains that the primary judge failed to make a finding that the paternal grandmother’s position at trial was contrary to the position she put to the District Court of Western Australia (“the District Court proceedings”), namely, that she was not fully recovered and will not fully recover from her injuries. This complaint is based upon the assertion that the position taken by the paternal grandparents and particularly the grandmother as to her current and future anticipated state of health in the District Court proceedings was at odds with the position that she put in these proceedings. The paternal grandmother’s District Court proceedings were resolved on 11 May 2021 by a judgment in her favour for $80,000 plus costs (at [115]).
In the paternal grandmother’s Statement of Claim in the District Court proceedings (exhibit 11(a) in the final hearing) she particularised her ongoing medical condition as at 12 November 2020 and paragraphs 16 and 17 plead:
16.The [paternal grandmother] has not fully recovered and will not fully recover from the Injuries. The [paternal grandmother] will continue to suffer from a loss of amenities in the future.
17.Due to her injuries and disabilities, the [paternal grandmother] has needed, since the Accident, and will need in the future, assistance with household and domestic tasks which she was able to carry out before the Accident…
The particulars set out in the paternal grandmother’s Statement of Claim are consistent with the medical reports recorded by the primary judge. Dr B’s report dated 24 August 2020 contained an assessment of the paternal grandmother’s injuries after the motor-vehicle accident. In a report dated 18 March 2021, Mr R opined that the paternal grandmother had suffered a permanent five per cent loss of function to her cervical spine, lumbar spine and left hand and that she may in the future require surgery to her left thumb. The primary judge accurately referred to the evidence of the two doctors in the abovementioned discussion.
The paternal grandmother was asked about her statement in the District Court proceedings that she “[has not] fully recovered and will not fully [recover] from [her] injuries as a result of the accident” (Transcript 20 January 2021, p.502 lines 34–36). The paternal grandmother said “I don't know if I’m going to completely be well, but I have faith that I’m going to be fully recovered” (Transcript 20 January 2021, p.506 lines 1–3) and later, “[w]ell, of course I will recover. Look, [I am] 60 years old and to look after three kids is not a - a task for anybody” (Transcript 20 January 2021, p.509 lines 1–3) (the paternal grandmother should be taken to have said that she was in her 60s; she is actually 68).
At paragraphs 13–22 of the paternal grandmother’s affidavit sworn 18 June 2020, she gave evidence about her physical care of the children in a typical week. She was not challenged in cross-examination in relation to that evidence.
The uncle sought no alternative orders in circumstances where the paternal grandmother became incapacitated.
The uncle has not demonstrated that there is an inconsistency between particulars given by the paternal grandmother of her physical and mental injuries pleaded in the District Court proceedings and her position as presented to the Family Court of Western Australia which was accepted by the primary judge.
Importantly, the complaint of the appellant was not that the primary judge ignored medical evidence that established that one or both of the grandparents lacked the capacity to parent by reason of age or ill health, or even that by reason of age or ill health, their capacity to provide care was compromised. The gravamen of the submissions was that her Honour ought to have been concerned that age or ill health may impact on capacity.
There is no merit in Ground 2(a).
Ground 2(b) complains that the primary judge failed to have proper regard to:
(a)the needs of the paternal grandparents and the lack of evidence of arrangements in Country A for the ongoing care of the grandparents’ needs;
(b)the evidence of the single expert that the stress of caring for children in the future would raise concerns for her; and
(c)the potential future health difficulties for the youngest child.
The ground does not assert that the primary judge failed to take these matters into account but rather that the primary judge failed to properly do so. That is, this complaint is one about the weight that the primary judge gave to these matters. Disagreement only on matters of weight by no means necessarily justifies a reversal of the primary judge (Gronow at 519).
In relation to Ground 2(b)(a), as indicated, the primary judge extensively discussed the current physical and mental issues confronting the paternal grandparents and their respective prognosis. Mr R said the paternal grandmother may need surgery to her hand. There is a note in Dr C’s report dated 6 November 2020 (Exhibit 8 in the final hearing) that the paternal grandmother had attempted to organise online a counsellor in Country A. The paternal grandmother gave evidence that she had two sessions which she found very helpful but that the time zones did not work to enable that relationship to continue (Transcript 18 January 2021, p.297 lines 34–51).
At [402] the primary judge recorded that the single expert referred to the paternal grandfather’s cardiologist stating that he was a patient with good clinical prognosis but would need treatments and follow-up and at [404] the primary judge concluded:
It is not in dispute that the grandfather requires treatment and follow-up, which he explained he intends to do in [Country A].
Earlier, the primary judge had noted that the paternal grandfather’s psychiatrist had, amongst other things, described the grandfather as “a highly resourceful man who has had a successful military career, and this has been a protective factor for him” (at [400]).
Regardless of whether or not the paternal grandparents demonstrated they had put in place appropriate arrangements for medical support upon their return to Country A, the question for the primary judge was whether they would be able to adequately physically care for the children with the supports they proposed to put in place in Country A. It was open on the evidence for the primary judge to conclude that they would be (at [417]).
There is no merit in Ground 2(b)(a).
Ground 2(b)(b) asserts the primary judge failed to have proper regard to the evidence of the single expert about a comment made by the paternal grandfather in March 2021 when he was admitted to hospital as a result of a suspected spider bite. Whilst in hospital, a notation on a medical record was that the paternal grandfather was caring for three young grandchildren with his wife and he “reports a lot of stress as carers”. The paternal grandfather does not speak English and any history was given by a friend who attended with him. The single expert was asked about the sentence in the medical record during cross-examination (Transcript 23 June 2021 p.1030 line 13 to p.1032 line 14). Whilst the single expert conceded that stress in the capacity to care raises concerns, it depended on whether that stress was arising from current circumstances (being isolated from usual supports in Country A) and whether it was assessed as likely that those stress levels might reduce. The single expert also made the point that the paternal grandmother was also a primary support for the children.
Whilst the primary judge did not directly refer to this evidence by the single expert, her Honour discussed the comments made by the paternal grandfather at the hospital in March 2021 at [407] and found at [408]:
This visit to hospital occurred before the [paternal] grandfather’s first of four sessions with Ms [S]. Ms [S] made no reference to stress and she did not doubt his ability to care for the grandchildren.
The primary judge made reference to the likely reduction in stress to the paternal grandparents after this litigation is resolved (see for example, at [440] and [444]).
Again, the focus of submissions, both in writing and at the oral hearing of the appeal, was on the question of whether the primary judge, having knowledge of the reference to stress in the hospital discharge summary, ought to have concluded that the parenting capacity of the paternal grandparents was compromised.
In circumstances where the single expert conducted a home visit the day after the date on the hospital record, and observed no sign that stress was impacting upon the care being provided to the subject children, the single note in the hospital record could not and was not accorded significant weight by the primary judge. This did not constitute error.
Ground 2(b)(b) fails.
Ground 2(b)(c) asserts that the primary judge failed to have proper regard to the potential future health difficulties for the youngest child and the capacity of the grandparents to manage those difficulties.
The youngest child suffered head trauma in the motor-vehicle accident. At [79] the primary judge discussed the youngest child’s readmission to hospital on 29 January 2020 with a brain injury, his surgical procedure on 3 February 2020 and his recovery from surgery and a subsequent discharge from hospital on 7 February 2020. Dr B published a medical report in relation to the youngest child on 14 December 2020 (at [102]). At [451] the primary judge recorded:
… Dr [B] reported [the youngest child] was progressing well from a neurological and development perspective and only required yearly reviews moving forward. He recommended if [the youngest child] was to relocate to [Country A] he should be referred to a neurosurgical team and monitored by a paediatric rehabilitation team.
During cross-examination, the paternal grandmother was asked about a statement in a report from Dr B recording that the youngest child was making good recovery from his injuries but the impact on his learning, higher cognitive function and mental health was unknown (Transcript 20 January 2021, p.500 line 50 to p.502 line 20). The paternal grandmother said she understood that there may be future problems as a result of the youngest child’s acquired brain injury. The paternal grandmother said she was going to have all the support that she needed in Country A and that she had a niece who was a neuro-paediatric surgeon who had told her not to worry because there would be help in Country A in respect of any possible future problems that might develop. The uncle complains on appeal (although, so far as we can find not specifically to the trial judge) the paternal grandparents had not called any evidence from the niece or any other medical practitioner in Country A to explain the services that might be available in Country A for the youngest child should difficulties emerge.
By way of comparison, at [347] the primary judge recorded that the uncle said that if the youngest child needed treatment for his acquired brain injury he would seek out a neurologist in Perth if necessary. There is little difference between the evidence given by the paternal grandmother and the uncle in respect of the future management of any difficulties arising from the youngest child’s acquired brain injury. Accordingly, there is no substance to the uncle’s complaint that the primary judge failed to identify the potential health difficulties for the youngest child in the future. Nor, was it an error for the primary judge to conclude that the paternal grandparents were capable of attending to the needs of the children, which included any emerging medical difficulties for the youngest child in the future.
There is no merit in Ground 2(b)(c).
Grounds 2(c) and (d) complain that the primary judge gave insufficient weight to the age and health issues of the paternal grandparents in the context of their ongoing ability to care for three very young children. The primary judge at [16] and [17] acknowledged that the paternal grandmother was aged 68 and paternal grandfather was aged 71. In his Summary of Argument filed 20 September 2021 at paragraph 33, the uncle observes that the paternal grandparents will be aged 86 and 88 respectively on the youngest child’s 18th birthday. The complaint is that the primary judge did not refer to or acknowledge the ages of the paternal grandparents as a factor in terms of their long-term ability to care for the children.
Coupled with that complaint, is the complaint that the primary judge did not refer to the evidence of the paternal grandmother that if she was unable to care for the children, they would live with her daughter and nor did the primary judge make any other findings as to the care of the children if the paternal grandparents were unable to do so.
The uncle refers to the paternal grandmother’s response in oral evidence about alternate care arrangements for the children in the event that their paternal grandparents cannot care for them:
That’s why I have one daughter; God gave me one daughter.
(Transcript 18 January 2021 p.327 lines 19–26).
The paternal grandmother also gave evidence that her daughter was living in close proximity to their home in Country A and would continue to do so when the paternal grandparents acquire larger accommodation.
The paternal aunt who is a lecturer and coordinator at a high school, gave evidence that she and her two children aged 15 and 11 lived about 5 kilometres from her parents (at [197] and [200]). She said that she communicates with her mother almost on a daily basis (affidavit of Ms M sworn 23 December 2020, paragraph 16) and is very close to her brother Mr L and his family (affidavit of Ms M sworn 23 December 2020, paragraph 5).
Importantly, at paragraph 17, the paternal aunt deposed:
Our family is united. I will assist my parents raising my nephews with the same love and dedication I raise my own children. The same way I have relied on my parents whenever I need their assistance caring for and supervising my children, they can rely on me to assist them into the future.
(Affidavit of [Ms M] sworn 23 December 2020)
In cross-examination, the paternal aunt confirmed that she and her mother had talked about what would happen to the children in circumstances where her parents could no longer care for the children (Transcript 20 January 2021, p.485 lines 28–49). The paternal aunt also indicated that the children would go to the same school at which she was teaching and she would be able to assist with transporting them to and from school.
The primary judge acknowledged that the paternal aunt would help her parents with the children if they need it and that she was ready to do so including the role that she might play in assisting with transportation to school (at [200]).
It is correct to submit that whilst the primary judge did comment on the possible long term effects of breaking the primary attachment between the children and the paternal grandparents, she did not specifically comment upon the possible death or incapacity in the long term of one or both the paternal grandparents.
The primary judge clearly recorded both the ages of the paternal grandparents and of the children and extensively discussed the health of the paternal grandparents. The uncle did not seek orders relating of the care of the children if the paternal grandparents ceased to have capacity to care for them. The uncle did not suggest before the primary judge that any health issue relating to the paternal grandparents had impeded their ability to care for the children up to the date of the hearing. The primary judge concluded the discussion of the age and health of the paternal grandparents by finding that any current difficulties with their health did not preclude them from caring for the children (at [417]). That finding was not restricted to the short or even medium term. The finding was open on the evidence.

In a difficult situation the primary judge needed to make the order which would meet the children’s needs in the short to medium term. There was no evidence to support the contention that either paternal grandparent was suffering from a life threatening illness and in those circumstances her Honour’s reasoning about with whom the children should live was sound.
There is no merit in Grounds 2(c) and 2(d).
Did the primary judge fail to consider all of the evidence and give inadequate reasons for her Honour’s finding at [471]? (Ground 3)
At [471] the primary judge found:
In my view an outcome which avoids the severance of the children’s primary attachments and the possible adverse consequences of that is in their best interests. I consider the benefits to the children of remaining in the primary care of their grandparents outweigh the benefits to them of living with the uncle and his family.
The appellant particularised this ground and hence to the extent that it is contended that there was a failure to consider evidence or give adequate reasons those contentions will be assessed using the subparagraphs relied upon by the appellant.
Did the primary judge fail to take into account the manner in which the single expert relied upon the evidence of Dr A? (Ground 3(a))
The uncle and the ICL first complain about the primary judge taking into account the evidence of the single expert that the children had a primary attachment with the paternal grandparents in circumstances where the single expert relied in part upon the evidence of Dr A, the children’s treating clinical psychologist.
The primary judge found at [364] and [365]:
364. Dr [A] said she had not assessed [the eldest child’s] attachment relationship with the uncle, because the uncle had not attended the sessions. The aunt had never attended appointments and Dr [A] could not make any clinical assessment of her. Notwithstanding extensive cross-examination by counsel for the ICL, Dr [A] did not change her opinion. Her view remained that the grandparents are the children’s primary attachments.
365. Dr [A] confirmed she had not observed the children in any meaningful way with the uncle and aunt to observe their attachment…
In preparation for her first report dated 11 December 2020, the single expert had a conversation for over an hour with Dr A. At the time of that conversation, Dr A had seen one or all of the children monthly over a 12 month period during 2020 in a clinical setting for sessions lasting in excess of one hour each (at [293]; Transcript 23 June 2021, p.964 lines 16–47). The latter sessions involved all three children in the company of the paternal grandparents.
The single expert in her first report dated 11 December 2020 recorded at paragraph 169 that Dr A reported that the three children “have developed a very strong solid attachments to the paternal grandparents” and at paragraph 203 recorded Dr A indicating that the paternal grandparents were the primary attachment figures for the younger child.
Dr A gave lengthy oral evidence on 22 and 23 June 2021 (about 85 pages of transcript). Dr A agreed that she had told the single expert in December 2020 that the youngest child had a primary attachment with his paternal grandmother (Transcript 22 June 2021, p.940 line 41). Dr A explained the basis upon which she reached that conclusion (Transcript 22 June 2021, p.942 lines 33–45).
Dr A opined that as a result of the sessions that she had with the children and their grandparents, she was able to form a view about the primary attachments of the children. Towards the conclusion of Dr A’s cross-examination by counsel for the uncle, Dr A was invited to resile from the opinion that the paternal grandparents represented primary attachment figures for the children with it being suggested that it would be better to characterise those attachments as “significant” (Transcript 23 June 2021, p.998 lines 18–26). Dr A’s cross-examination concluded with the following statement:
What I would say is that is – is a clinical judgment that I have made that the grandparents are primary attachment figures for the children.
(Transcript 23 June 2021, p.990 lines 24–26)
The submission that Dr A qualified her opinion during her cross examination is not made out.
Dr A at all times agreed that she had not had any opportunity in a clinical setting to assess the strength of the attachments between the children and their uncle and aunt.
The single expert however did have that opportunity. For the purposes of the preparation of the first report, the single expert had a home visit on 7 November 2020 for an hour and 25 minutes with all of the parties and all of the children (who were living in the same house at the time). The single expert also interviewed all of the parties. For the second report, the single expert did further interviews with the parties and observed the paternal grandparents in the family home with the children on 6 March 2021 and with the uncle and aunt in their home on 27 March 2021 (each visit in excess of one hour). The single expert also had available to her all of the evidence and subpoenaed material. At paragraphs 98 and 99 of her second report dated 12 April 2021, the single expert concluded:
98.While the children share a close and loving relationship with [the uncle] and [the aunt], consistent with the previous report, the author maintains the view that the children’s primary attachment figures are the paternal grandparents.
99.…While the children clearly love [the uncle] and [the aunt] and enjoy spending time with them, the children do not appear to have the same level of attachment to them and their patterns of behaviours and emotions indicated that they were not as regulated, comfortable and settled when observed in their care.
In cross examination, the single expert was asked whether or not she had relied on Dr A’s assessment of attachment when reaching her own opinion. The single expert replied:
I took it into consideration, but that was also something I looked at quite closely myself when I was looking at observation sessions and – but that certainly did help me form an opinion.
(Transcript 23 June 2021, p.999 lines 33–36)
When pressed in cross-examination, the single expert maintained her view that the children’s primary attachment relationship was with the paternal grandparents and reiterated:
I base that, in part, on Dr A’s information. Also, in terms of the way that I observed the children in that initial session with all of them together, but then, also, when I was doing the update assessment on the two individual observation sessions that I had with the respective parties.
(Transcript 23 June 2021, p.1000 lines 16–21)
The suggestion that the single expert did not form her own independent opinion based on all the information that she had is not made out.
Ground 3(a) does not have merit.
Did the primary judge err by failing to properly consider how attachments with the uncle and aunt could be fostered; if the children’s disorganised attachment with them improved and the desirability of transitional proposals? (Grounds 3(b) and (d))
The uncle complains that the primary judge gave little or no weight to his “proposed transition period for the children” or how the “disorganised attachment” with the youngest child “can be fixed.”
In cross-examination, the single expert gave evidence that the youngest child had a “disorganised attachment” with the uncle and aunt, explaining that that was recognised in psychology as a form of insecure attachment (Transcript 23 June 2021, p.1003 lines 36–47). The single expert said that such a pattern of disorganised attachment can continue and that “the younger child would need to have very reliable, very predictable contact with that person, who would be able to attend to their needs…no significant changes or disruptions to routine” (Transcript 23 June 2021, p.1004 lines 31–32 and lines 36–39).
Later, the single expert gave evidence that if the children were moved to live with their uncle, a transition period which provided a period of stability of schooling, interaction with peers and ongoing therapy with their treating psychologist, would be a good thing.
By Grounds 3(b) and (d), the uncle complains that the primary judge did not take this evidence sufficiently into account.
The fact that the primary judge did not spend time in the reasons for judgment exploring the hypothetical possibility of repairing the youngest child’s disorganised attachment to the uncle is unsurprising. The single expert gave evidence about the way in which a disorganised attachment may be addressed but that evidence fell short of establishing that in this case the attachment relationship would be repaired. It stood to reason then that the primary judge was loath to experiment and in effect change the live with arrangement of an infant from a household where he had secure attachments to one where he had a disorganised attachment (which had become more pronounced between the single expert's first and second home visits).
It should also be pointed out that the orders sought by the uncle did not require any period of transition and would in fact allow the uncle to move the children away from Perth to Town A immediately. Of particular relevance to the issue of the youngest child’s disorganised attachment with the uncle and aunt, the single expert expressed concerns about “fixing” that attachment and the transition more generally if both the uncle and aunt were working full-time (single expert’s report dated 12 April 2021, paragraphs 102 and 103). The primary judge has demonstrated in the reasons that she understood the evidence of the single expert in relation to the current attachments between the children and the parties (for example at [379]) and the need for psychological counselling if the children were to be moved to the uncle and aunt and the benefit of the children remaining in Perth for a transition period (at [384]).
The single expert recommended at paragraph 105 of her second report dated 12 April 2021, that the two older children attend a small number of sessions with Dr A prior to relocating to Country A. No order was sought during the trial in relation to that therapy, although counsel for the uncle belatedly made a reference to that recommendation when the parties addressed the Court on the proposed form of orders on 5 August 2021. There is no ground of appeal in relation to the primary judge not making any order consistent with that recommendation.
There is no merit in Grounds 3(b) and (d).
Did the primary judge err by failing to properly consider the alleged difficulties with the single expert’s evidence about potential long-term effects on the children of severing their attachment to the paternal grandparents? (Ground 3(c))
At [385] and [467] the primary judge said:
385.Counsel for the uncle submitted [the single expert] was only able to opine as to short-term consequences but could not articulate long-term consequences of breaking the attachment with the grandparents. [The single expert] referred to disrupted attachment patterns. She said if the children’s relationship with their grandparents, being their primary caregivers or even if just significant caregivers, was disrupted, such that the children are not able to have regular face-to-face contact with them, it has an impact on social, emotional, physical and psychological development. [The single expert] said the children had already lost their parents and to “replay that pattern again” solidifies the pattern of broken attachments. The children not having face-to-face contact with and primary care by the grandparents, in her view definitely had the potential for long-term impact.
…
467.Tragically the children have lost their parents. Since then they have been cared for by the grandparents and to a lesser extent by the uncle. The severance of their attachment to the grandparents would result in further loss and grief to the children. [The single expert] said being separated from the grandparents will have a significant impact on the children in the short-term as described above. In young children it can be difficult to predict the long-term effects of such an event, however [the single expert] was of the view a separation from the grandparents had the potential for a long-term impact.
In submissions before us, counsel for the uncle and the ICL both criticised the single expert for not particularising long-term consequences of breaking the children’s primary attachment with the paternal grandparents and complain the primary judge did not properly consider this alleged failure. Counsel for the ICL asserts that the single expert under cross-examination, referred to emotional and behavioural dysregulation and regression in the children as only a short-term consequence of being separated from the paternal grandparents and that:
Despite being asked three times by the [ICL] to particularise long-term consequences if the children were separated from the [paternal grandparents], the expert did not descend to further detail than to comment that there was a potential impact on the children’s social, emotional, physical and psychological development and that is solidified a pattern of broken attachments if this occurred again (noting the children had already lost their parents). No examples of potential long-term impact or any further specificity was provided.
(ICL’s Summary of Argument filed 27 October 2021, paragraph 14(b))
During the single expert’s cross-examination by the ICL the single expert not only spoke of the short-term consequences of severing the primary attachment with the paternal grandparents, but also directly responded to the questions about the long-term issues (Transcript 23 June 2021, p.1010 lines 1–26 and lines 28–39 and Transcript 23 June 2021, p.1013 line 47 to p.1015 line 10). The single expert strongly opined “Yes. Absolutely” that there would be long-term impacts (Transcript 23 June 2021, p.1014 line 5):
The psychological research and evidence, I mean, if we’re looking at disruptive attachment patterns from young childhood onwards, you know, if we’re looking at these grandparents being their primary care givers, or even just significant care givers, what we know is that if that’s disrupted and they’re not able to have regular face-to-face contact with those attachment people, it has an impact on social, emotional, physical development, psychological development. It has all sorts of impacts on a child’s development.
(Transcript 23 June 2021, p.1014 lines 9–18)
As I said, you know, these children have already lost their parents, so they’re – that primary attachment has already gone. If you were to replay that pattern again for these children, that, again, just solidifies that pattern of broken attachment. And so the impact of the children not having that contact and face-to-face and primary care by [the paternal[ grandparents, definitely has the potential for long-term impact.
(Transcript 23 June 2021, p.1014 lines 33–42)
The single expert on the other hand gave evidence that the attachment between the children and the uncle and aunt did not appear to be so vital to the children’s development and would be less of a long-term impact (Transcript 23 June 2021, p.1014 lines 46–47 and line 50). The ICL asked the single expert to elaborate on what she meant by “vital to their development” and the single expert responded:
Well, I think, you know, in terms of the early stuff – in terms of when the children were needing a lot of support, a lot of love, you know, when you’ve got a primary person to come back to and support them, that was really important in not only helping the children to work through that grief but, also, in terms of their emotional development, their social development. And, you know, a primary giver or a primary attachment figure is vital in the child being able to do that.
(Transcript 23 June 2021, p.1015 lines 2–10)
It can be seen that the primary judge faithfully captured at [385] and [467] the strong opinion expressed by the single expert.
The importance to the children (and in particular the youngest child) of preserving the attachment relationship given the loss of their parents was plain on the evidence.
There is no substance in the submission by counsel for the ICL both at the trial and before us that it was a failing by the single expert to not further particularise the potential long-term impact on the children’s social, emotional, physical and psychological development. It was sufficient to identify that long-term risks of a serious nature existed.
There is no merit in Ground 3(c).
Did the primary judge fail to consider the effect upon attachments of the paternal grandparents’ intention to hire somebody to look after the youngest child? (Ground 3(e))
The paternal grandfather gave evidence that he and the paternal grandmother will continue in their role as primary carer of the children with the assistance of extended family nearby who will provide support whenever required (affidavit of the paternal grandfather filed 7 December 2020, paragraph 37).
During cross-examination, the following exchange took place between counsel for the ICL and the paternal grandfather:
[COUNSEL FOR THE ICL]: And why do you say you can look after these three better than [the aunt] can look after these three?
[INTERPRETER FOR THE PATERNAL GRANDFATHER]: Because I and my wife, not only me – I and my wife, we will look after the children. So our intention is when we get back to [Country A] – if we take the kids with us – we are going to hire someone to look after the baby, and then another one to help my daughter – or my wife – because in [Country A] you can do that.
[COUNSEL FOR THE ICL]: OK. Someone to look after the baby – and hire someone to help in the household.
[INTERPRETER FOR THE PATERNAL GRANDFATHER]: In the household, yes.
(Transcript 15 January 2021, p.186 line 48 to p.187 line 11)
During the second tranche of the trial, there was the following exchange during the single expert’s cross-examination by counsel for the ICL:
[COUNSEL FOR THE ICL]: So when the [paternal] grandparents have given evidence that when they go back to [Country A] they will have someone come into the home to assist with the house work and someone to come into the home to assist with the care of [the youngest child], does that change your view?
[THE SINGLE EXPERT]:--- I suppose it would depend on how much in terms of that care would – you know – if it would be a full-time care and a live-in nanny and the grandparents wouldn’t be seeing [the youngest child], then that would certainly have an impact but I would need to know more information, I suppose.
[COUNSEL FOR THE ICL]: So, a potential change of care arrangement in terms of the person doing the caring on top of all that?
[THE SINGLE EXPERT]:--- Yeah, if it was ---
[COUNSEL FOR THE ICL]: That would impact upon the children?
[THE SINGLE EXPERT]: --- A significant care role, yeah, that – that would certainly need to be an adjustment for [the youngest child].
(Transcript 23 June 2021, p.1045 lines 12–28)
At [332], the primary judge recorded:
In [Country A] the [paternal] grandparents propose to employ someone to assist with looking after [the youngest child] and someone to look after the house, although that person would not live in. It is usual and not expensive in [Country A] to employ someone to help with the cleaning and housework.
The uncle submits that this finding by the primary judge, is not as high as the evidence of the grandfather. We do not accept that that submission is sustainable. At no time did the paternal grandparents give evidence that they intended to have a live-in nanny or in some way abrogate their responsibility as the youngest child’s primary carers.
We are unable to discern how it could be asserted that the primary judge has not considered this aspect of the proposal of the paternal grandparents. There is no merit in Ground 3(e).
Did the primary judge err in finding the paternal grandparents would promote a relationship with the maternal grandmother? (Ground 4(a)(i))

The primary judge found at [444]:
I consider that once these proceedings are concluded and there is some certainty in the children’s arrangements, both the grandparents and the uncle who are motivated by what is in the children’s best interests will promote and encourage the children’s relationship with the other members of their family.
The primary judge had earlier found at [266]:
Since the maternal grandmother returned to [Country A] the only communication she has had with the children is that facilitated by the uncle.
As indicated, the maternal grandmother was in Australia with the children’s half-brother for a little over six weeks immediately after the accident. During that time, she lived in the home with the paternal grandparents and the children. They had been brought together in extraordinarily tragic circumstances.
The uncle complains that the primary judge did not consider the evidence of the controlling behaviour of the paternal grandfather in the six week period that the maternal grandmother was in Australia.
In his trial affidavit sworn 5 November 2020, the uncle gave the following evidence :
103.…On 4 February 2020 …[the paternal grandfather] had been very rude to my mother in the morning, saying [the eldest child] was “his’ grandson and that “he” was responsible for the children.
106.…[The paternal grandfather] also said that for interacting with the children, taking them for a walk, or even feeding them my mother, [the children’s half-brother] and I had to ask them first. I even needed [the paternal grandparents’] permission to take a photograph of them.
107.…My mother and I could not even be in contact with the children, even though they were in the same house. If they came over to us [the paternal grandfather] yelled at them. [The paternal grandmother] kept [the youngest child] away from us, by holding him and keeping his cot in their room… My mother and I and [the children’s half-brother], the maternal family, could not freely be in contact with the children…
108.There were still many occasions where my mother or I looked after the children or helped out…
109.…My mother gave [the middle child] a bottle and put him to bed.
110.On 13 February 2020 I went with my mother and [the paternal grandfather] with [the youngest child] to get his stitches out…
112.[The paternal grandmother] also regularly asked [the children’s half-brother] to take [the two older children] to the park nearby which he did. However my mother and I were not allowed to go with him.
113.Notwithstanding [the paternal grandparents] not allowing the children to interact with myself, with their brother…and my mother, every night [the two older children] would come to my mother’s room to sleep. They would seek us out and not leave our side, even when [the paternal grandfather] was yelling at them.
114.From that time [it is unclear at what point in the six week period this was] [the paternal grandparents] literally took possession of [the youngest child]….My mother was no longer allowed to bath [the youngest child] and feed him, which she had been doing since she arrived. [The paternal grandfather] also insisted that [the two elder children] could no longer interact with myself and my mother whenever we happened to be with the children.
At [218] the primary judge recorded the uncle’s assertion about not being able to take the children out whilst he was living at the home.
The uncle assisted in taking the eldest child to sporting activities (at [131] and [214]).
In the trial affidavit of the maternal grandmother filed 7 December 2020, she deposed that after she arrived in Perth on 17 January 2020 with the uncle and the children’s half-brother, the two older children started sleeping with her and her son (paragraph 30). She gives evidence that when the younger child came home from hospital on 22 January 2020 the paternal grandparents, the uncle and herself organised a roster to watch over the youngest child day and night (paragraph 31). The maternal grandmother asserted that on 10 February 2020 the paternal grandparents showed the uncle and herself a document saying that they were the “definitive guardians” and that she and her son had to ask permission for everything regarding the children and that after that time, the paternal grandparents would not let her get close to the youngest child again except when they had to do some other chore and needed her to stay with him (paragraph 38). But in contrast, at paragraph 44 she deposed to the fact that everyone in the house shared their evening meal together.
It is entirely understandable that there was a level of tension in the home between January and March in circumstances where everybody was attempting to deal with their tragic losses and litigation had commenced in respect of the future parenting arrangements for the children.
The primary judge observed in the maternal grandmother’s evidence:
259. The maternal grandmother gave evidence by video link from [Country A] where she resides with the [children’s half-brother].
260. I consider the maternal grandmother gave truthful evidence recounting the events as she saw and recalled them. Her evidence was given from her own perspective, bearing in mind the outcome she hopes for, namely that the children live with the uncle in Australia.
In cross-examination, the maternal grandmother volunteered that since her return to Country A and until December 2020, she only “saw” the children (by electronic means) “in secret” because the paternal grandparents did not give permission for her to see the children (Transcript 21 June 2021, p.857 lines 37–47):
When I was in Australia, they didn’t treat me well and they didn’t even allow me to touch the kids, and when I left they said not to -not to – I have to ask. And when I went back to [Country A] they told me not to look for – for the kids anymore – not to get in touch with the kids.
(Transcript 21 June 2021, p.858 lines 1–6)
The maternal grandmother was then asked whether or not it was her who blocked the paternal grandparents from communicating with her via her Facebook page and she responded:
Yes I did block the Facebook, but not the WhatsApp. I did block, because [the paternal grandmother] said that I was mad and I – and I was mentally ill, and that’s why I blocked the Facebook.
(Transcript 21 June 2021, p.858 lines 27–30)
The maternal grandmother told counsel for the ICL that the uncle organised for her to speak to the children on a daily basis when the paternal grandmother was having her daily shower (Transcript 21 June 2021, p.862 lines 28–32 and lines 39–41) and that since December 2020 she communicates with the children every time that they are with the uncle (Transcript 21 June 2021, p.863 lines 4–5).
We accept the contention by counsel for the paternal grandparents that it was entirely reasonable for the uncle to take responsibility for maintaining contact between the children and his mother. The maternal grandmother gave evidence that she had not reached out to the paternal grandparents by attempting to contact them by the email address that she had for them (Transcript 21 June 2021, p.862 line 28).
At [77] the primary judge noted the conflicting evidence between the paternal grandparents on the one hand and the uncle and the maternal grandmother on the other, as to when the latter were informed of the orders of 14 January 2020 (the former saying it was on 21 January 2020; the latter saying it was on 10 February 2020).
The maternal grandmother’s written evidence about whether or not she was allowed to touch the children while she was in Australia is somewhat contradictory. The evidence that she communicated with the children in secret after she left Australia and her allegations about the paternal grandmother saying she was “mad” and “mentally ill” were made during cross- examination. Although the uncle complains about it, the fact that the evidence given in cross-examination was not referred to by the primary judge in her reasons is not surprising. It was not evidence given by the maternal grandmother in her trial affidavit. It was volunteered in cross-examination after the case of the paternal grandparents had closed. These allegations were not put to the paternal grandmother.
In cross-examination (in reference to the period between March 2020 and December 2020) the paternal grandfather said:
…I never opposed to [sic] the kids to talk to [the maternal grandmother]. Once a week, they were talking, and I even get out when they were talking to … [the maternal grandmother]…
(Transcript 15 January 2021, p.188 lines 18–21)
When asked by counsel for the ICL whether he agreed to the maternal grandmother bringing the three children to Australia by herself to see the uncle and aunt, the paternal grandfather responded, “Of course” (Transcript 15 January 2021, p.221 lines 32–37).
The paternal grandmother was asked in cross-examination how important it was for the children to have a relationship with their maternal family. She responded:
Very much so. Since – that’s why when I – [the uncle and aunt] arrived I told them that we should be close, not to fight. We – as a family, we should be close, because the kids only have us now.
(Transcript 18 January 2021, p.260 lines 39–42)
A little later in her cross-examination, the paternal grandmother was asked about how the children got on with the maternal grandmother. She responded, “[t]he same as they get well with me.” She was then asked, “[s]o, they got on well with [the maternal grandmother]. And she was good with them?” The paternal grandmother responded, “Yes, they did. She’s good” (Transcript 18 January 2021, p.274 lines 1–6).
Included at paragraph 13 of the ICL's Minute of Proposed Orders filed 15 June 2021 is this recital:
13.… both the [paternal grandparents] and the [uncle] have indicated they will work together for the children and it seems they have been able to do so at times. It is hoped that this will continue to improve after the proceedings are finalised. With that in mind, the ICL has included communication between the parties by telephone at paragraph 18 below.
The evidence at trial supported the conclusion that the paternal grandparents understood the importance of the children’s relationship with the maternal family including the maternal grandmother and the children’s half-brother (Transcript 15 January 2021, pp.186, 189, 221, 242, 243, 244 and Transcript 18 January 2021, p. 274). It was open on the evidence for the primary judge to find that looking forward, the paternal grandparents would promote a relationship between the children and the maternal grandmother.
There is no merit in Ground 4(a)(i).
Did the primary judge err in failing to adequately consider the realities and practicalities of the children spending time with or having a relationship with their half-brother? (Ground 4(a)(ii))
The primary judge found at [457]:
Concerns have been raised by the grandparents about risks associated with the children spending time with …, their half-brother, after allegations that he behaved in a sexually inappropriate manner when in Australia. The maternal grandfather's wife also referred to such behaviour. In contrast the uncle had no concerns about [the half-brother’s] behaviour. If the children live with the [paternal] grandparents in [Country A] they are likely to spend time with [the half-brother] in the company of the [paternal] grandparents. If the children live with the uncle in [Town A], they are likely to spend time with [the half-brother], when [he] and the maternal grandmother visit Australia. As reported by [the single expert] the exact nature of [the half-brother’s] issues are unclear. As a precaution, I accept her recommendation that the children be supervised by adults when interacting with [the half-brother] in the future.
The children’s half-brother was 17 years of age at the date of the trial and was living in [Country A] with the maternal grandmother.
The primary judge made no order requiring any time the children spent with their half-brother to be supervised. There is no cross-appeal by the paternal grandparents arising from the primary judge’s failure to implement by order the intention expressed in the final sentence of [457].
The concerns referred to in that paragraph are explained in other parts of the reasons. They arise primarily from evidence given by a close friend and neighbour of the deceased parents who made observations of the half-brother’s interaction with another child and with the eldest subject child which the primary judge detailed at [175] (see the affidavit of Mr U filed 30 June 2020, paragraphs 11, 14 and 15 and his oral evidence at Transcript 19 January 2021, p.424 line 45 to p.425 line 27). In addition, the primary judge referred at [193] to evidence of the wife of the maternal grandfather that the children’s half-brother had some strange behaviours and that the school had contacted her informing her that he had been acting out sexually on other children at school. The primary judge recorded at [225] that the uncle had no concerns about the children’s half-brother. In his view, he had ADHD and was quite immature but was not dangerous. The uncle saw no need for supervision.
The primary judge recorded at [84] that in February 2020 the Department of Communities (“the Department”) investigated sexual abuse concerns involving the children’s half-brother after it had been reported that he had been inappropriately touching the eldest child. The Department conducted a child assessment interview with the eldest child who made no disclosure of abuse. Harm was not substantiated and the case was closed in June 2020.
The single expert at paragraph 218 of her report dated 11 December 2020 discussed the concerns raised about risk issues associated with the children spending time with their half-brother. She commented that the exact nature of his psychological/neurological issues remained unclear and noted that he continued to be monitored on a regular basis by a neurologist and a psychologist in [Country A]. She recorded that he had been described as immature and “childish” and that he had “problems with the right side of his brain that affects his behaviour”. The single expert opined that he may have behaved in a manner not appropriate for a 16 year old boy and/or may have lacked insight into appropriate behaviours or ways of interacting with younger children. It was on that basis the single expert recommended that to reduce the level of risk to the children, the children be supervised by adults when interacting with him in the future.
At [14] the primary judge recorded that the Proposed Minute of Final Orders (exhibit 3) by the paternal grandparents, sought an order that if the children spent time with their half-brother there should be adult supervision (proposed Order 14).
On the other hand, the ICL and the uncle sought no orders at all which specifically facilitated the children spending time with their half-brother or communicating with him. During her oral evidence, the paternal grandmother acknowledged it was very important for the children to have a relationship with their half-brother provided it was “under supervision” (Transcript 18 January 2021, p.274 lines 38–39). At [329] the primary judge referred, amongst others, to the children’s half-brother living in Country A and the evidence of the paternal grandfather that he was conscious of the importance of the children’s relationship with their extended maternal family (which included the children’s half-brother) and that he would make a real effort to maintain communication with them and facilitate time between the children and the maternal family.
The uncle’s complaint under this ground is that the primary judge failed to adequately consider practical arrangements for the children to spend time with their half-brother, challenging the primary judge’s finding at [457] that the children are likely to spend time with their half-brother upon their return to Country A. The uncle asserts that the primary judge gave no consideration as to how the relationship between the children and their half-brother could be fostered and promoted and made no orders for its facilitation. That complaint must fail given that the uncle at no stage sought any defined orders as to the children’s time with their half-brother.
The ICL’s submissions assert that it is difficult to conceive the paternal grandparents would trust the maternal grandmother to be with the children’s half-brother when the children were with her. The ICL complains that the primary judge’s reasons did not extend to how the relationship with the children's half-brother could be practically promoted.
Again, the ICL’s complaint must fail given the ICL sought no order at all relating to the children’s half-brother.
Ground 4(a)(ii) fails.
Did the primary judge fail to adequately consider the paternal grandparents’ attitude to the uncle’s capacity to parent? (Grounds 4(a)(iii) and (iv))
The primary judge found at [444]:
I consider that once these proceedings are concluded and there is some certainty in the children’s arrangements, both the grandparents and the uncle who are motivated by what is in the children’s best interests will promote and encourage the children’s relationship with the other members of their family.
The uncle submits this conclusion was “not open” on the evidence (uncle’s Summary of Argument filed 20 September 2021, paragraph 63) and the ICL submits it was “unsound” (ICL’s Summary of Argument filed 27 October 2021, paragraph 26) notwithstanding the position taken at paragraph 13 of the orders sought by the ICL which we have earlier discussed at [39] and [148].
The uncle was in the home with the children from January to December 2020. The aunt was in the home until September 2020 when she moved away to work for the majority of the week.
The primary judge recorded the evidence about the relationship between the parties in this period at [437]:
After the accident the parties were living in the home together. All parties were involved in the care of the children. Inevitably there would have been some tension after Court proceedings had commenced. An order was made on 14 January 2020 that the [paternal] grandparents have joint parental responsibility for the children and that the children live with them. Subsequent to that order, the uncle and the maternal grandmother were joined to the proceedings. On 17 February 2020 the uncle filed a response to the application in terms of which he sought orders that he and the maternal grandmother have joint parental responsibility for [the children’s half-brother] and the children and that the children live with them and spend time with the grandparents. Against that background of competing positions for orders in respect of the children, the parties continued to live together and share care. The uncle provided assistance to the [paternal] grandparents which they accepted. The [paternal] grandfather saw it as his responsibility to make decisions concerning the children, including those relating to their time with the uncle, schooling and medical matters.
In support of the uncle’s argument that it was not open for the primary judge to find that the paternal grandparents will in the future promote and encourage the children’s relationship with the uncle and members of his family, the uncle points to the following aspects of the evidence:
(a)the paternal grandparents’ lawyer contacted the children’s school on 8 April 2020 to inform them that the interim orders gave the paternal grandparents parental responsibility and that the uncle should not be making decisions relevant to the children’s schooling. This evidence is however consistent with the primary judge’s finding in the last sentence of [437].
(b)the uncle asserts the paternal grandparents restricted the children from spending time with him away from home until December 2020. In support of the proposition, the uncle refers to his counsel’s cross-examination of the paternal grandfather (at Transcript 14 January 2021, p.115 line 21 to p.122 line 5). The paternal grandfather was asked about his attitude to the children having time with the uncle away from the home. He accepted he was reluctant to allow that because of COVID-19 and his belief from an earlier occasion when the uncle had taken the children to a park that the uncle was talking to the children about them staying with him in Australia. The paternal grandfather denied that he restricted the uncle taking the children away because he feared it would hurt his case.

The uncle also refers to cross-examination by his counsel of the paternal grandmother who said she had lost confidence in the aunt after the aunt had accessed her mobile telephone, read messages she had sent her children and friends and made reference to the destruction of a 10 year friendship. In that context the following exchange occurred:
[COUNSEL FOR THE UNCLE]: Yes, and why wouldn’t you let them take them out for outings?
[INTERPRETER]: Do you think I would trust somebody that did something like that to me? I have no trust on these people.
(Transcript 15 January 2021, p.245 lines 13–18)
The paternal grandmother had earlier said that she had “no opinion” of the uncle (Transcript 15 January 2021, p.244 line 8) because “[she] never saw him do anything. Everything was done by [the aunt]….no, no, everything. All the issues, she is the boss” (Transcript 15 January 2021, p.244 lines 13–22). Counsel for the uncle raised this evidence in oral submissions as support for the contention that the paternal grandparents had shown themselves unwilling to support the relationship with the maternal family. That does not recognise the context of the evidence. In essence the paternal grandmother was indicating that she had no opinion of the uncle as a carer because all tasks had been undertaken by his wife.
In response the paternal grandparents refer to the fact that the uncle only sought formal orders for time with the children after he left the home and that consent orders were agreed to in December 2020 and extended by further agreement in March 2021.
The paternal grandfather gave evidence in January 2021 that he liked the uncle and thought he had a good relationship with the children and that he had nothing against the aunt (Transcript 15 January 2021, p.185 line 50 to p.186 line 10).
In the single expert’s second report dated 12 April 2021, she recorded:
63. [The uncle] said that the amount of conflict between themselves and the grandparents has decreased significantly since they have moved out of the house. He said that he and [the paternal grandfather] are the ones to typically communicate about issues relating to the children, and they keep handovers business like and cordial.
It can be seen that notwithstanding the evidence to which the uncle refers, there was evidence, which was more recent, which supported the finding made by the primary judge at [444]. A court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]).
There is no merit in Grounds 4(a)(iii) and (iv).
Did the primary judge err when comparing the respective financial resources of the parties? (Ground 4(b))
The primary judge found at [464]:
… I have found that both the grandparents and the uncle have the capacity to provide for the children's needs. The grandparents are well resourced financially. The uncle intends to work and to support four children with his income and that of the aunt.
The primary judge had already made the following findings:
330.The grandfather is a retired [public servant] of [Country A]. He receives a gross monthly pension [from Country A] of approximately $17,000 [local currency], plus benefits. After his retirement he continued working [at Company A] …. He earned approximately $6,000 [local currency]. In February 2020 the grandfather was released from that position to enable him to remain in Australia to care for the children and deposed he is informed that position remains available to him in the event he decides to return to work in [Country A].
331.The grandmother is an army pensioner. She receives a monthly gross income of approximately $4,000 reais. The grandfather deposed that their combined income is high when compared to the national average household income in [Country A] and they are able to enjoy a comfortable life. The grandparents recently settled their personal injury claims. The grandfather is confident their income will be more than sufficient to provide the children with the necessary financial and emotional support.
The uncle submitted that the finding that the paternal grandparents were “well resourced financially” was against the weight of evidence. However, the findings at [330] and [331] were not challenged and it was common ground that the paternal grandparents owned their own home (unencumbered) in a secure compound in a good area of Country A, and had funds in the bank of $18,000 (Financial Statements sworn 26 September 2020). They had already made plans to sell their home to replace it with a larger home to accommodate the children.
The paternal grandfather gave evidence that by adopting the children, the paternal grandparents would be eligible for health care offered by his employer (Transcript 14 January 2021, p.149 lines 1–44).
The paternal grandparents between them had received about $200,000 in damages awards arising from the accident but as counsel for the uncle correctly points out in his Summary of Argument filed 20 September 2021, at paragraph 67, their legal fees in this case were about the same amount. The paternal grandparents however would have access to the monies raised which the primary judge found still had $97,000 in it (at [67]).
The uncle was critical that the primary judge did not refer to the fact that the paternal grandparents had not yet implemented their plan to sell their current accommodation and purchase a larger property. We accept the submission by counsel for the paternal grandparents that it was not realistic in circumstances where the paternal grandparents had not had the benefit of knowing that the children would be living with them to implement plans for alternate accommodation in Country A.
The uncle further complains that the primary judge relied upon the single expert’s “reservation” as to financial concerns in respect to the uncle at [432]. Whilst the primary judge recorded the single expert’s “concerns” about the uncle being able to handle the period when the children would “transition” to him in circumstances where both he and the aunt were working full-time, it is not clear the primary judge had the same reservations.
Having said that, the uncle’s criticism of the primary judge’s finding that the paternal grandparents were “well-resourced financially” needs to be seen in the context of the financial position of the uncle and aunt. They had no assets. The uncle’s legal fees were being paid by a third party. For a year prior to coming to Australia in January 2020, the uncle had lived off savings. The aunt had worked in Country B while the uncle was living in Country A and not working. The uncle’s Australian visa did not permit him to work upon his arrival in Australia in January 2020 until May 2021 when he obtained employment at a market. No reference was made to his level of income. The primary judge recorded that the uncle planned to find employment when he moved to Town A (at [342]) but it did not appear he had any particular job to go to. The aunt earned $50,000 per year. The uncle and aunt would rent (at [341]).
There is no merit in Ground 4(b).
Did the primary judge fail to adequately consider how the children could maintain a meaningful relationship with the uncle given the primary judge’s reference to electronic communication? (Ground 4(c)(i))
At [398] the primary judge found:
Electronic communication can be a meaningful way of maintaining a connection between the children and the party with whom they are not living.
The uncle complains this finding was made without evidence and any regard to the ages of the children. The second complaint cannot be sustained given the primary judge said at [397]:
The children have a close bond with both the grandparents and the uncle. [The eldest child] and [the middle child] would be able to maintain a relationship with the persons with whom they are not living by way of electronic communication. That might be a little bit more difficult for [the younger child] by reason of his young age.
This ground is curious given that the uncle in his written Papers For The Judicial Officer filed 8 January 2021, page 8 had submitted:
Communicating with the other party is relatively simple and inexpensive and can be done by various electronic means or via telephone. However, there is a significant time difference between [Country A] and Australia which requires some management. The children, particularly [the middle child] and [the youngest child] will need assistance with this form of communication given their age.
The primary judge’s observations at [397] and [398] generally adopt the uncle’s submission at trial.
Whilst not a ground of appeal, counsel for the ICL complains that the primary judge did not engage with what the ICL described as the paternal grandparents’ abrogation of the task of maintaining the children's relationship with the maternal family. This submission is based on the assertion that the primary judge’s finding at [444], that the paternal grandparents would encourage the children’s relationship with the maternal family, was unsound. We have already discussed why that assertion is erroneous.
Further, counsel for the ICL argued that the primary judge erred in finding at [441]:
The children have maintained a close and loving relationship with the uncle, the aunt and [the cousin] and this indicates that the grandparents have not failed to encourage or promote that relationship…
Whilst the ICL points to negative aspects of the interaction between the parties whilst they were living in the same home, it was common ground that the children had a close and loving relationship with the uncle and aunt and the inference drawn by the primary judge in respect of the paternal grandparents’ role in achieving that outcome was open.
The ICL further complained that the primary judge failed to consider the effect on the children of a separation from their cousin. However, at [375] and [390] the primary judge said:
375.[The eldest child’s] relationship with [the cousin] is close and also a significant one. It has been likened to that of a brother. [The cousin’s] relationship with all three children is important. [The cousin] now attends school in [Town A].
…
390.I am not persuaded that the children’s separation from [the cousin] will have as detrimental of an effect upon them as a separation from the grandparents.
It is plain the primary judge did consider this issue.
Ground 4(c)(i) fails.
Does the primary judge fail to consider the practical restrictions on face-to-face time? (Ground 4(c)(ii))
In this ground the uncle complains the primary judge did not have regard to the COVID-19 restrictions on international travel; the visa position of the uncle; the evidence of his migration agent and the respective financial positions of the parties.
Neither side proposed that, in the event that they were unsuccessful, they would move to the country in which the children lived. As a consequence, face-to-face time could only happen following international travel.
The uncle complained that the primary judge failed to take judicial notice of the prevailing restrictions occasioned by the pandemic. At [455] and [456] the primary judge said:
455.The impact of the COVID-19 pandemic cannot be ignored. I am able to take judicial notice that there is a pandemic and there are current prohibitions against international travel. However, there was very little evidence about the pandemic in [Country A] and its impact in that country. It was not a basis for the ICL’s or the uncle’s opposition to the children living with the grandparents in [Country A]. The ICL made no mention of the pandemic in the definitions and recitals which precede her proposed final orders. I was not referred to any publications of which I could take judicial notice. No expert evidence was provided to me.
456.The matters of which I was asked to take judicial notice being those pertaining to the pandemic in [Country A] are matters which are reasonably open to question and matters on which expert opinion may differ. These are matters about which I am not able to take judicial notice.
The primary judge has not erred in failing to taking judicial notice of matters pertaining to the pandemic in Country A.
The uncle next complains that the primary judge failed to take into account the evidence he called from his migration agent about the risks for him in leaving Australia, but the primary judge accurately summarised that evidence at [286].
Paradoxically, given the uncle’s position in Ground 4(b) discussed above, the uncle complained that the primary judge failed to consider his inferior financial position, in the context of international travel and that there was no evidence that either party could afford the airfares, and no evidence as to the actual costs of travel between Australia and Country A.
This submission does not sit comfortably with the uncle’s own application for there to be international travel so that the children could have face-to-face time with the paternal family should the children live with him in Australia.
There is no merit in Ground 4(c)(ii).
CONCLUSION
The uncle and the ICL have not established any error of the kind referred to in House. The appeal from the primary judge’s reasons for judgment shall be dismissed.
COSTS
At the conclusion of the hearing before us, the paternal grandparents sought an order as to costs against the uncle and the Director of Legal Aid Western Australia (“Legal Aid”) as the employer of the ICL, jointly and severally. In written submissions, the paternal grandparents “conceded” it would be appropriate for an order to be made that Legal Aid pay 25 per cent of their costs and the balance be paid by the uncle.
The paternal grandparents seek payment of the costs of senior and junior counsel at scale set out in Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), for the preparation of the appeal and the hearing of the appeal in a total amount of $42,900.
Both the uncle and the ICL resist the application for costs.
In relation to the costs application against the ICL, the paternal grandparents rely upon the fact that they incurred costs to meet submissions made by the ICL, that the ICL was wholly unsuccessful on the appeal, and that the ICL maintained a position against the paternal grandparents even after recommendations in both family reports by the single expert; having the advantage of the primary judge’s reasons and the reasons of O’Brien J in his stay judgment (Galipo & Anor and Christie [2021] FCWA 148 (“Galipo & Christie”)).
Section 117(1) of the Act provides each party to the proceedings shall bear his or her own costs. The ICL should be treated as “analogous to a ‘party’” to the proceedings (Re P (a child) (1993) FLC 92-376 at 79,904). Section 117(2) of the Act permits an order as to costs to be made which the court considers just, if the circumstances described in s 117(2A) justify it in doing so, and costs orders may be made against both a party to a proceedings and a non-party.
The ICL is to be treated as an impecunious party
In De Roma v De Roma (2013) 49 Fam LR 226 (“De Roma”), the history of the case law and the legislative history which led to the enactment in 2003 of s 117(5) of the Act are discussed in detail at [23]–[43] and at [44] the Court observed:
Having regard to the extrinsic material and reading s 117(3), (4) and (5) together, it is clear that the Parliament’s intention when introducing s 117(5) of the FLA was that (absent any other s 117(2A) of the FLA factors that pointed in the opposite direction), parties (usually parents) who could help pay for the Independent Children’s Lawyer, should. The result is that, while not determinative in a particular case, across all cases, the subsection is likely to lead to a general increase in the protection of the public purse.
In Gahen & Gahen (No. 2) [2013] FamCA 936, Austin J at [10] agreed that that was the effect of s 117(5) of the Act. In our view that correctly states the intention and effect of s 117(5); (compare Celan & Celan [2021] FamCA 228 where a different opinion was expressed). As a result, the effect of s 117(5) is that the ICL is to be treated as being unfunded and an impecunious party whether the ICL is seeking an order for costs or opposing one (Zeng & Lam [2017] FamCA 66 at [255]).
To the extent that the paternal grandparents rely upon the opinion expressed by Faulks J in Cripps & Cripps [2002] FamCA 1502 (“Cripps”), to assert a different view; that case was decided prior to the 2003 amendments which inserted s 117(5) into the Act. As discussed in De Roma at [42], one of the expressed reasons for introducing s 117(5) was to overcome the opinion expressed in Cripps.
Nonetheless, in an appropriate case an order can be made against an impecunious party (Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]).
The ICL’s conduct of the appeal must be viewed in the context of the role and statutory duties imposed upon the ICL by the Act. Section 68LA of the Act provides that the ICL must form an independent view based on the evidence of what is in the best interests of the child and act in what the ICL believes to be the best interests of the child (s 68LA(2)). The duty to “act in an independent and unfettered way in the best interests of the child” carries over to an appeal (CDJ v VAJ (1998) 197 CLR 172, per Kirby J at [11]).
If satisfied that the adoption of a particular course of action is in the best interests of the child, the role of the ICL is to make a submission to the court suggesting the adoption of that course of action (s 68LA(3)). The ICL has a duty to act impartially (s 68LA(5)(a)). There is an analogous line of cases discussing the circumstances in which an application for the discharge of an ICL might be contemplated (Lloyd and Lloyd and Child Representative (2000) FLC 93-045 at [11]; Knibbs & Knibbs [2009] FamCA 840 (“Knibbs”) at [33]–[61] approved in part in Paco & Racina and Anor [2014] FamCAFC 195 at [52] and [53]). Those cases describe the high bar which needs to be reached in order for an application for the removal of an ICL to be successful. Those cases make some observations about the role and duties of the ICL which are relevant to the question of a consideration of how the ICL conducted the appeal.
In Dean & Susskind [2012] FamCA 897, Forrest J (agreeing with Murphy J in Knibbs) expressed the view that apprehended partiality, objectively assessed, may not be sufficient to give rise to the discharge of an ICL. That is because an ICL, acting completely within the bounds of her or his statutory duty, may well say and do things which might give the appearance of partiality even to an objective bystander. In Sawyer & Sawyer [2015] FamCA 982, Forrest J at [79]–[80] observed that whilst the Court always expects high standards of competence from those lawyers charged with the onerous responsibility of independently representing children in parenting proceedings, human fragility may mean that those high standards of competence are not always met.
In Pagliarella and Pagliarella (No. 3) (1994) FLC 92-460, Hannon J said:
…In considering whether an order [for costs] should be made against the Commission, the Court should have regard to the public interest in not having Legal Aid Commissions at risk of becoming liable for costs so as to diminish the funds available for the purpose which they were established nor to cause them to act with such caution that indigent persons involved in litigation may be prejudiced by assistance being refused. …This is not to say that in cases where a Commission has clearly acted unreasonably to the financial detriment of a self-funded party, an order for costs should not be made.
The statement by Hannon J about the risks of a child not being properly represented by an ICL because of timidity arising from a fear of being the subject of a successful costs application, are similar to the authorities relating to the making of costs orders against the lawyer for a party more generally (Knight and Anor v F.P. Special Assets Ltd and Ors (1992) 174 CLR 178; Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155).

Whilst the costs application that has been made is against the ICL’s employer who has agreed to fund the ICL’s support of the appeal, it is the conduct of the lawyer appointed in this matter to independently represent the children which is germane to this costs application.
The jurisdiction to make costs orders against an ICL should be exercised cautiously. An ICL should be free, consistently with s 68LA of the Act, to form an independent view and belief of what is in a child’s best interests and to pursue them. The failure to have a view or belief vindicated should not, without more, lead to a costs order being made against an ICL. The threat of costs orders being regularly made against an ICL is likely to impede the ICL’s fulfilling of her or his role and duties.
Statutory Considerations
Both the uncle and the ICL were wholly unsuccessful in their core applications relating to with whom the children would live, parental responsibility and opposing international relocation.
As discussed, the ICL is to be treated as being impecunious.
The parties provided evidence of their financial circumstances at trial and each filed a financial statement. The paternal grandparents had met their own legal costs on a private basis. The paternal grandfather has taken unpaid leave from the Company A whilst he waits in Australia for his case to conclude. The uncle currently has a job but does not have any significant means.
Neither the uncle nor the paternal grandparents were legally aided in the appeal.
Legal Aid funded the costs of the ICL at trial, including the single expert witness fees for reports and appearances, witness fees for Dr A and the reports by Ms S and did not seek that the parties contribute to the costs of the ICL for the trial or the appeal.
We have discussed in general, the role and duties of the ICL.
The paternal grandparents submit that the ICL conducted the appeal without making an objective assessment of the merits of the appeal having regard to the limited basis upon which this court could interfere with the discretionary decision of the primary judge (House). They point to the fact that in the stay application before O’Brien J, having discussed the grounds of appeal, his Honour concluded “my preliminary assessment is that the Uncle’s appeal does not have strong prospects of success” (Galipo & Christie at [70]).
The paternal grandparents assert that the ICL’s submissions on appeal were essentially a re-agitation of the unsuccessful arguments made by the ICL and the uncle at trial and also points to other defects in the ICL’s unsuccessful submission on the appeal.
Whilst there is some strength in the submission of the paternal grandparents that in this case the ICL should have adopted a different approach on the appeal to the one pursued at trial, the paternal grandparents have failed to establish that the ICL conducted the appeal in an unreasonable manner, given the views and beliefs the ICL had formed about what was in the children’s best interests.
Taking into account the mandatory statutory considerations and also the tragic circumstances of this case, we have concluded that we should not exercise our discretion to make an order for costs of the appeal and the application of the paternal grandparents shall be dismissed.
The ICL has sought an order for costs against the paternal grandparents in the sum of $805 for costs incurred by the ICL in responding to the costs application on the appeal. Given that there were some reasonable basis for that application, albeit unsuccessful, the ICL’s application for costs in respect of the costs application shall also be dismissed.

I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, Justices Watts & Christie.
Associate:
Dated: 17 December 2021

WEA 19 of 2021 PTW 320 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR CHRISTIE Appellant
AND:	MR AND MRS GALIPO Respondents
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Galipo and Galipo and Christie [2021] FCWA 140
Appeal number(s):	WEA 19 of 2021
File number(s):	PTW 320 of 2020
Judgment of:	MCCLELLAND DCJ, WATTS & CHRISTIE JJ
Date of judgment:	17 December 2021
Catchwords:	FAMILY LAW – APPEAL – CHILDREN – Where the children’s parents are deceased – Where the maternal uncle appeals from a discretionary judgment – Capacity of the paternal grandparents to care for the children – Where the children have formed a primary attachment with the paternal grandparents – Where the result of the orders is international relocation – Adequacy of reasons – Weight challenges – No error is established – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where there is an application for costs against the ICL – The ICL is to be treated as being unfunded and an impecunious party – Where the ICL’s conduct of the case is to be viewed in the context of the ICL’s role and statutory duties – Jurisdiction to exercise costs against the ICL should be exercised cautiously so as not to impede the ICL in the conduct of his or her duties – Where the ICL’s application for costs against the costs application is dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 68LA, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited:	Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Celan & Celan [2021] FamCA 228 Cripps & Cripps [2002] FamCA 1502 De Roma v De Roma (2013) 49 Fam LR 226; [2013] FamCA 566 Dean & Susskind [2012] FamCA 897 Gahen & Gahen (No. 2) [2013] FamCA 936 Galipo & Anor and Christie [2021] FCWA 148 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Knibbs & Knibbs [2009] FamCA 840 Knight and Anor v F.P. Special Assets Ltd and Ors (1992) 174 CLR 178; [1992] HCA 28 Lenova & Lenova (Costs) [2011] FamCAFC 141 Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155; [2000] FCA 674) Lloyd and Lloyd and Child Representative (2000) FLC 93-045 Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Paco & Racina and Anor [2014] FamCAFC 195 Pagliarella and Pagliarella (No. 3) (1994) FLC 92-460; [1994] FamCA 16 Re P (a child) (1993) FLC 92-376; [1993] FamCA 40 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sawyer & Sawyer [2015] FamCA 982 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 U v U (2002) 211 CLR 238; [2002] HCA 36 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Zeng & Lam [2017] FamCA 66
Number of paragraphs:	230
Date of last submissions:	19 November 2021
Date of hearing:	5 November 2021
Place:	Perth (via video-link), delivered in Sydney
Counsel for the Appellant:	Mr Berry SC with Ms Farmer
Solicitor for the Appellant:	Law Firm B
Counsel for the Respondents:	Mr Hedges SC with Ms Anderson
Solicitor for the Respondents:	Law Firm A
Counsel for the Independent Children's Lawyer:	Ms De Maio
Solicitor for the Independent Children's Lawyer:	Legal Aid

Table of Corrections
11 January 2022	In paragraph 220 “wholly successful” has been corrected to “wholly unsuccessful”.

ORDER MADE BY:	MCCLELLAND DCJ, WATTS & CHRISTIE JJ
DATE OF ORDER:	17 DECEMBER 2021